Volume 153 — Indiana Reports

<p>Erom the Marion Criminal Court.</p>

<p>From the Tipton Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>From the'Benton Circuit Court.</p>

<p>From the Decatur Circuit Court.</p>

<p>Judgments. — Review.—Complaint.—A complaint to review a judgment on account of new matter discovered since the rendition of the judgment, in order to withstand a demurrer, must set forth the facts showing that the alleged new matter could not have been discovered, by the exercise of reasonable diligence, before the rendition of the judgment; a general averment that plaintiff could not have discovered the new matter alleged, by the exercise of reasonable diligence, before the rendition of the judgment sought to be reviewed, is not sufficient, pp. 21, 22.</p> <p>Judgments. — Review.—Complaint.—Joint Action. — A complaint in a joint action to review a judgment which states a good cause of action in favor of but one of the parties is bad as against a demurrer. p. &2.</p>

<p>Partition. — Mortgage by Tenant in Common Pendente Lite. — Enforcement of Lien. — A mortgage executed by a tenant in common upon his undivided interest in land pending a suit for partition thereof creates a valid lien upon his interest, which lien, upon a partition sale, is devested in favor of the purchaser, and the lien transferred to the fund arising from the sale. pp. 24, 25.</p> <p>Mortgage. — Stay of Execution a Sufficient Consideration. — A mortgage given to stay the levy of an execution for a period of three months is for a valid consideration, p. 25.</p>

<p>Taxation. — Sheriff’s Certificate of Purchase. — Under the tax statute of 1891, as amended by the act of 1895 (§§6316, 6318 Homer 1897), the certificate of purchase issued upon a sheriff’s sale is subject to taxation during the period of redemption, though there was no redemption, and the holder of the certificate was compelled to pay the taxes against the real estate for the same period, pp. 27-29.</p> <p>Same. — Listing Omitted Property Without Notice. — Injunction.—The placing of omitted property upon the tax duplicate by the county auditor, without the notice required by §6409 Homer 1897, is no ground for enjoining the collection of the taxes, where none of the substantial rights of the taxpayer is shown to be prejudiced. p. SO.</p>

<p>Eminent Domain. — Damages.—Chosein Action. — A claim for damages for real estate appropriated by a railroad company is a chose in action, and passes from the owner of the real estate, upon his death, to his personal representatives, and not to his heirs; but there are circumstances under which the heirs may sue upon and collect choses in action belonging to the ancestor, p. 32.</p> <p>Same.— Damages. — Complaint.—A complaint by tenants in common to recover damages for lands appropriated by a railroad company is not rendered bad by the mere fact that such tenants also sought to recover damages to an interest owned by their ancestor in the lands at the time of the appropriation, p. 32.</p>

<p>New Trial. — Motions.—Action.—An assignment in a motion for a new trial that the damages are excessive is only applicable to cases sounding in tort, and does not challenge the amount of recovery in an action arising out of contract, p. 34-</p> <p>Appeal and Error. — Evidence.-—Where the verdict of the jury has received the approval of the trial court, the judgment will not be disturbed on appeal, merely upon the evidence, unless it affirmatively appears by the record that there is an absolute failure of evidence on some material point, pp. 34, 35.</p>

<p>Erom the Marion Superior Court.</p>

<p>Banks and Banking. — Collections.-—Insolvency of Bank Making Collections. — Trusts.—Plaintiff bank sent a note to defendant bank for collection. Defendant collected the note, receiving in payment the maker’s check, charged the amount of the check to its deposit account, and drew a sight-draft on a correspondent bank, in which it had a deposit in excess of the amount of the draft, and sent the draft to plaintiff as a remittance of the proceeds of the note collected. Plaintiff received the draft and forwarded it for payment, but the paying bank refused payment for the reason that it had received notice of the failure and suspension of defendant bank. Held, that the relation of trustee and cestui que trust was not created between the banks, but simply that of debtor and creditor, and that plaintiff is not entitled to be preferred in its claim over the general creditors of the insolvent bank.</p>

<p>From the Hendricks Circuit Court.</p>

<p>Descent and Distribution.— Husband and Wife. — Childless Second Wife. — Children by Former Marriage. — Sale of Seal Estate. — Disposition of Proceeds of Sale. — Where a widow and the children of her deceased husband join in a conveyance of real estate in which she had a one-third interest as a childless second wife, under §§2483-2487 R. S. 1881, the widow is entitled to one-third of the purchase-money paid for the real estate, and such children have no more interest therein than they would have had in her one-third of the real estate, if the same had been set off to her in severalty, and they cannot maintain an action to prevent her from receiving and using the same, or to deprive her of the possession thereof.</p>

<p>Constitutional Law. — Fees and Salaries. — County Officers. — The fee and salary law of 1891, as amended by the acts of 1893 and 1895, fixing the salaries of county officers in each county of the State, and the fees to be paid for official services, requiring the whole amount of the fees collected to be paid over to- the county treasurer, and directing that the salaries of such officers be paid out of any moneys in the county treasury, not otherwise appropriated, with the proviso that the amount paid to any officer shall not exceed the sum turned in by him, is not unconstitutional in that it fails to grade the compensation of officers in proportion to population and necessary services required within the meaning of the provision of §22, article 4 of the Constitution prohibiting local or special laws relative to fees or salaries, “except that laws may be so made as to grade the compensation of officers in proportion to the population and the necessary services required.” Jordan, C. J., dissenting.</p>

<p>From the Henry Circuit Court.</p>

<p>From the Fayette Circuit Court.</p>

<p>Divoeoe. — Jurisdiction.—Witnesses.—Qualification.—Proof that the witnesses called upon to prove plaintiff’s residence were resident freeholders and householders of this State is prerequisite to the court’s jurisdiction to hear and determine a divorce proceeding. pp. 88, 89.</p> <p>Courts. — Jurisdiction.—Divorce.—Witnesses.—Appeal and Error.— "Where the jurisdiction of a circuit court depends upon the finding of certain facts, the exercise of jurisdiction implies the finding of such facts; but such implication cannot stand on appeal in the face of an affirmative showing of all of the evidence upon which the court acted, p. 89.</p> <p>Appeal and Error. — Correction of Record. — Bill of Exceptions.— Certiorari. — The trial court has no power to amend a hill of exceptions after the close of the term of court at which it was made and signed, where there was no memorial, memorandum, entry, or writing of any kind on which to base the correction, pp. 89, 90. Divorce. — Evidence.—Waiver.—The failure of plaintiff in a divorce proceeding to show that the witnesses called to prove her residence were freeholders and householders of the State was not waived by the action of defendant in proceeding with the trial after she had rested, and not calling the court’s attention to the point at once, where the defendant called the court’s attention to the same in a motion for a new trial, pp. 90, 91.</p>

<p>Erom the Steuben Circuit Court.</p>

<p>Criminal Law. — Larceny.—Information.—Duplicity.—An information charging that defendant at a time and place named “did then and there unlawfully and feloniously steal, take, and carry away of the personal goods and chattels of said Jane Engle, $5 in money, and the personal goods and chattels of Samuel Engle, $4.50 in money,” etc., is not bad for duplicity, as it prima facie discloses that the larceny occurred at the same time and place, and constituted but a single transaction. Johnson v. State, 138 Ind. 160, distinguished.</p>

<p>From the Marion Circuit Court.</p>

<p>Courts. — Jurisdiction.—A court of general jurisdiction must proceed * manner and upon the conditions imposed by the law, and an assumption of jurisdiction over a subject or person, upon the terms denied by the law, is as unwarranted as the assumption of jurisdiction without its territorial limits, p. 102.</p> <p>Same. — Jurisdiction. — Void Judgment. — Where a court proceeds without jurisdiction its judgment is wholly void, and its nonexistence may be declared upon a collateral attack, upon the suggestion of an amicus curios, or by the court at any time upon its own motion, p. 102.</p> <p>Same. — Jurisdiction.—In the absence of the power of the court to exercise jurisdiction, it cannot be conferred by agreement of the parties, pp. 102, 103.</p> <p>Insurance. — Enjoining the Issuance of Special Contracts. — Jurisdiction. — Where an insurance company is organized and doing business under the act of February 10, 1899 (Acts 1899, p. 80), a court of general jurisdiction has no power, upon the application of a policyholder or member, to enjoin the issuance of special contracts of insurance; since the statute provides that a court shall have no-power to interfere with the business of such company except upon the application of the Attorney-General, pp. 103-105.</p>

<p>Master and Servant. — Personal Injuries. — Defective Machinery.— Promise to Repair. — Assumption of Risk. — Where an employe notifled employer of defects in tools and machinery, and the employer recognized such defects, and, to avoid an immediate suspension of the work, requested and induced the employe to continue the work by a promise to repair, the employer is charged with an assumption of the extraordinary risk pending the promise to repair, pp. 111-113.</p> <p>Same. — Personal Injuries. — Defective Machinery. — Promise to Repair. —Complaint.—A complaint in an action for damages on account of personal injuries sustained from the use of defective machinery containing the allegation that “the defendant promised the plaintiff that it would repair said saw and table as soon as the job of work that said company was then working on was completed,” is good as against a demurrer without stating the time required to complete the work. pp. 113, 114.</p> <p>Same. — Personal Injuries. — Defective Machinery. — Promise to Repair. —Injury Before Time Promised to Make Repairs. — Where an employe is induced to continue work upon a promise of the employer to repair defective machinery as soon as the job of work engaged on is completed, the employer is not relieved from liability for an injury sustained by the employe by reason of such defective machinery because the injury was received before the time of the execution of the promise to repair had arrived, p. llj..</p> <p>Same. — Personal Injuries. — Defective Machinery. — Promise to Repair. — Complaint. — Proof.—Where plaintiff in an action for damages on account of personal injuries resulting from the use of defective machinery alleged in his complaint that the saw and table were defective, and that he was injured thereby after a promise to repair the same had been made, proof that the table only was defective, and that he was injured by reason of the defect in the table, operating solely and independently of the saw, after promise to repair it had been made, and within the limit of the promise, will entitle him to a recovery, pp. 116-118.</p>

<p>Railroads. — Master and Servant. — Malpraetiee of Hospital Surgeon. ■ —Where a railroad company deducted a portion of an employe’s wages for the maintenance of a hospital to provide surgical and medical service for its employes in case of accident it cannot escape, liability for damages to such employe arising by reason of the malpractice of its hospital surgeon, on the ground that the deduction of the employe’s wages was made without his written consent contrary to the provisions of §§2300, 2301 Burns 1894. pp. 121-126.</p> <p>Evidence. — Railroads.— Malpractice.— Incompetency of Surgeon.— Notice. — In the trial of an action by an employe against a railroad company for damages arising from the malpractice of the defendant’s hospital surgeon, evidence as to the reputation of such surgeon for sobriety was admissible for the purpose of showing that the officers of the company had notice of his incompetency. pp. 127, 128.</p> <p>Railroads. — Malpractice of Hospital Surgeon. — A railroad company is liable to an employe for damages resulting from an operation performed by an incompetent surgeon employed in a hospital maintained by such company by money deducted from the wages of its employes, and managed by a board of trustees made up of the general officers of the road. pp. 128, 132.</p> <p>Evidence. — Railroads.—Principal and Agent. — In the trial of an action brought hy an employe against a railroad company for damages resulting from the malpractice of its hospital surgeon, a statement made by one who engaged plaintiff to work for defendant, and kept his time, to the effect that the rules of the company required a deduction to be made from his wages each month for the maintenance of the hospital, was admissible as the declaration of defendant, pp. 124, 132.</p> <p>Same. —Railroads.—Hospital Surgeon. — Incompetency.—Notice.—In the trial of an action against a railroad company for damages resulting from an operation performed upon plaintiff by defendant’s hospital surgeon, the testimony of another patient of improper treatment by such surgeon during the same time plaintiff was treated was admissible on.the question of notice to defendant of the incompetency of the surgeon, p. 133.</p>

<p>From the Marion Circuit Court.</p>

<p>Corpora tions. — Execution of Deed by Vice-President. — Unless otherwise provided by statute, by the charter of the corporation, or its by-laws, the deed of a corporation may be executed as well by its vice-president as by its president, and when so executed, with other necessary formalities, it will be presumed that the vice-president had authority to act on behalf of the corporation, p. 148.</p> <p>Same. — Presumption as to Authority of Secretary to Affix Seal. — The secretary of a corporation is the proper custodian of the corporate seal, and when he affixes it to a deed or other instrument, the presumption is that he did so rightfully by the direction of the corporation. p. 149.</p> <p>Same. — Record of Deed. — Description of Corporate Seal.- — The record of a deed purporting to be the deed of a corporation, and executed and recorded more than forty years ago, shows that there was a seal upon the instrument but does not describe it as the seal of the corporation. The testatum clause of the deed states that the company had caused their corporate seal to be affixed, and the certificate of acknowledgment sets forth that the seal was affixed by authority of the board of directors. Held, that the record sufficiently shows that the seal by which the deed was attested was the corporate seal. p. 149.</p> <p>Deed. — Execution by Attorney in Fact. — Husband and Wife. — Where a husband and wife execute a power of attorney to sell the real estate of the wife, but the manner of the conveyance to be executed by the attorney was not prescribed, a deed executed by such attorney in pursuance of the power thus granted him conveys the title of the wife, although the attorney in fact failed to insert in the deed, and subscribe thereto, the name of the husband ; it being apparent that the attorney intended to execute the power fully and effectually, and the purchase-money was received and retained by the husband and wife. pp. 150-155.</p> <p>Same. — Discrepancy Between Deed and Record. — Client Bound by Knowledge of Attorney. — Discrepancies between a deed from N. and the record thereof will not avail subsequent purchasers from N., when one of the purchasers, who was also the attorney for the other purchaser, was shown the deed before purchasing, jp. 155.</p> <p>Evidence. — Map.—A new map made by a drainage company, and placed on file in the county auditor’s office, is not admissible in evidence against one who does not derive title through such company. pp. 155, 156.</p> <p>Evidence. — Failure to Introduce Maps Referred to by Witnesses.— Testimony of witnesses cannot be stricken ont because the party introducing it failed to introduce maps referred to by such witnesses, and which would have rendered the testimony more easily understood, p. 156.</p> <p>Same. — Declarations of County Surveyor Contradicting Survey. — A declaration of the county surveyor contradicting his official survey is not admissible in evidence, p. 156.</p> <p>Same. — Dis Pendens Record. — The lis pendens record is properly admitted as evidence showing redemption of certain lands from a judicial sale. p. 156.</p> <p>Same. — Introduction of Evidence After Rebuttal. — Discretion of Court. —The refusal of the trial court to permit the adverse party, after the rebuttal, to introduce further evidence on a subject which had been presented on both sides is not an abuse of the court’s discretion. p. 157.</p> <p>Judgment. — Amount of Damages. — Computation by Court from Special Verdict. — The computation and insertion by the court of the amount of damages to which plaintiff is entitled under the special verdict, made during the term at which the verdict was returned, is proper, p. 15S.</p>

<p>Taxation. — Converting Property for Purpose of Avoiding Taxation. —Duty of Officers. — By §8463 Burns 1894 the assessor is required to list for taxation property which has been temporarily converted into property which is not taxable for the purpo'se of evading the payment of taxes thereon; but if such duty is not performed by that officer it is imposed upon the auditor, county assessor, and other taxing officers by other sections of the tax law. pp. 159, 160.</p> <p>Same. — Assessment of Omitted Property.- — Duty of Officers. — Section 8463 Bums 1894 makes it the duty of the assessor every year when he lists the property of each taxpayer to cause any property to be assessed at its true cash value which he is satisfied such person has since the first day of April of the preceding year converted into non-taxable property for the purpose of evading the payment of taxes thereon, and if such officer fails to discharge this duty for one year, or any number of years, the other taxing officers have the power, and it is their duty, to assess the same for such years as omitted property, under other sections of the tax law. pp. 160, 161.</p> <p>Same. — Collection of Taxes. — Notice.—Injunction.—A court of equity will not enjoin the assessment of property for taxation, or the collection of taxes, on the ground of insufficiency of notice, or other informalities or irregularities, where the property is taxable, p. 161m</p> <p>Same. — Assessment of Omitted Property. — Injunction.—An injunction will not lie to restrain the county auditor from placing upon th,e tax duplicate property alleged to have been omitted from taxation for certain years if taxable property belonging to plaintiff was omitted from the tax duplicate in any of the years mentioned. p. 161.</p> <p>Injunction. — Taxation.—Assessment of Omitted Property. — Plaintiff is not entitled to an injunction restraining the county auditor from adding certain property to the tax duplicate as omitted property, where it is not shown by the special finding of facts that defendant would add such property to the tax duplicate if not enjoined, p. 162.</p>

<p>Pleading. — Complaint.—Personal Injury of Traveler at Railroad and Highway Crossing. — Wilfulness.—In an action against a railroad company for personal injuries sustained by plaintiff at a railroad and highway crossing, an allegation in the complaint that plaintiff’s team was seen by the fireman when the locomotive was 400 feet distant therefrom, and that the fireman thereupon notified the engineer, who could have stopped the train by reversing the engine, but failed, to do so, does not amount to a charge of wilfulness. pp. 164, 165.</p> <p>Railroads. — Injury of Traveler at Crossing. — Failure to Give Statutory Signals. — Proximate Cause. — Where the situation of a railroad and highway crossing is such that the driver of a team drawing a wagon could not see an approaching train until he had reached the crossing, but that before reaching the crossing he stopped the team and listened for a train, and, not hearing any, proceeded to cross, and was injured by reason of a collision of his wagon with a passing train the engineer of which had failed to give the statutory signals, the failure to give such signals was the proximate cause of the injury, pp. 165-167.</p> <p>Same. — Negligence.—Proximate Cause. — Incomplete Instruction. — In an action against a railroad company for negligence, an instruction that plaintiff must prove “damage .to plaintiff proximately caused by plaintiff’s injury,” if incomplete for failure to limit the damages to be recovered to such as may have resulted “from the matters alleged in the complaint,” is not reversible error, where no modification of the instruction was asked by the defendant, pp. 168, 169.</p> <p>Same. — Injury of Traveler at Crossing. — Failure to Give Statutory Signals. — Instruction.—In an action against a railroad company for personal injuries sustained by plaintiff, an instruction that the failure of those in charge of the locomotive “to give the statutory signals on approaching a crossing constitutes negligence, and if, on account thereof, injury comes to a highway traveler at such crossing, who is free from fault or negligence, it is sufficient to charge such company with negligence,” is proper, and is not equivalent to instructing the jury that such proof is conclusive on the question of negligence, pp. 169, 170.</p> <p>Same. — Personal Injuries. — Contributory Negligence. — Instruction.— Where, on the trial of an action against a railroad company for personal injuries caused by the alleged negligence of the company, it is sought to be shown that plaintiff was guilty of contributory negligence, it is proper in an instruction to define contributory negligence “as such negligence on the part of the plaintiff as helped to produce the injuries complained of.” p. 170.</p> <p>Railroads. — Traveler at Crossing Must Look and Listen. — Instruction. • —In an action against a railroad company to recover damages received at a crossing, an instruction that no failure on the part of defendant to do its duty would excuse plaintiff from using his senses of sight and hearing was sufficient without using the words, “make complete use of his senses of sight and hearing.” pp. 170, 171.</p> <p>Instructions. — Refusal to Give. — The refusal of the court to give an instruction is not error, where the instruction offered was, in substance, given by the court on its own motion, p. 171.</p>

<p>From the Fountain Circuit Court.</p>

<p>Special Finding. — Must be Construed as a Whole. — A special finding must be considered as a whole, and force given to all findings clearly relating to the same fact or transaction, pp. 183-185.</p> <p>Bills and Notes. — Renewal.—The term “renewal,” as applied to promissory notes, means the reestablishment of the particular contract for another period of time. p. 18Jj..</p> <p>Special Finding. — Sufficiency.—In a suit by a creditor, a special finding that defendant executed a note to plaintiff which was after-wards renewed, and that judgment was obtained by plaintiff on the renewal note, is a sufficient finding that the judgment was rendered against defendant, p. 185.</p> <p>Fraudulent Conveyance. — Pleading.—Proof Necessary. — Judgment. —Presumption.—In a suit by a judgment creditor to set aside a conveyance as fraudulent, it is sufficient, to entitle plaintiff to maintain his suit, to allege and prove the rendition of his judgment prior to the commencement of such suit; the continuance of such judgment in force being presumed in the absence of affirmative proof established under a proper answer, p. 186.</p> <p>Husband and Wife. — When Dairy and Poultry Products Not Separate Property of Farmer’s Wife. — Mortgage.—Where by the assent of her husband a farmer’s wife took charge of all domestic dairy and poultry products as her own, a portion of which was expended for groceries and clothing for the family, and a part used by the husband, the production and sale of such products .did not constitute the wife’s separate business within the meaning of §6975 Bums 1894; and notes and mortgages executed by the husband to the wife for sums of money derived from such products received by him from his wife, are without consideration, and void as against creditors, pp. 186-189.</p> <p>Costs. — Failure of Special Finding to Specify Amount. — Appeal.— A provision in a decree for the payment of a specific amount of costs accrued in the original judgment will not be stricken out on . appeal because the special finding of the trial court did not specify the amount of costs accrued, p. 189.</p>

<p>Bills and Notes. — Promissory Note. — Indorsement.—Suretyship.— Guaranty. —An indorsement of a promissory note by the payee as.follows: “For value received, I hereby sell and assign the within note to W., and guarantee the payment and collection of the same, and agree to pay all attorney’s fees, and do waive ment for payment, protest and notice of protest and nonpayment of the same,” constitutes a direct and absolute undertaking to pay the note, upon which undertaking the indorser is liable at the suit of an assignee; and it is not required of such assignee that he attempt collection from the maker before proceeding against such indorser. pp. 190-194.</p> <p>Appeal. — Sustaining Demurrer to Pleading. — Harmless Error. — It is harmless error to sustain a demurrer to one paragraph of a pleading, where a remaining paragraph contains all the material allegations thereof and no more. p. 196.</p> <p>Bills and Notes. — Assignment.—Indorsement.—Merger.—An undertaking indorsed on a note by the payee thereof is not merged into a separate written assignment of such note by the mere acceptance of such assignment, pp. 196, 197.</p>

<p>Prom the Madison Circuit Court.</p>

<p>From the Marion Superior Court.</p>

<p>Criminal Law. — Failure to Weigh Coal Before Screening. — Indictment. — An indictment under §§5 and 7 of the act of March 2, 1891 (Acts 1891, p. 57), which charges that defendant did “unlawfully fail to weigh said coal as it came from said mine before the same was screened, but, on the contrary, did then and there weigh the same after it had been screened,” without disclosing by clear and positive averments some intended or executed purpose affecting the rights of the miners, states no offense, p. 215.</p> <p>Same. — Failure to Weigh Coal Before Screening. — Indictment.—Mining Boss. — An indictment under §§5 and 7 of the act of March 2, 1891 (Acts 1891, p. 57), charging that defendant was a “mining boss” without charging that he exercised the duties of an “ owner, operator, agent, lessee,-superintendent, or bank boss,” is not sufficient to withstand'a motion to quash, p. 216.</p>

<p>Erom the Huntington Circuit Court.</p>

<p>Constitutional Law.— Chattel Mortgages.— Household Goods.— §§1 and 2 of the act of March 8,1897, (Acts 1897 p. 271), providing that a stipulation in a mortgage of household goods, giving the mortgagee the power to sell the mortgaged property, shall be void, and requiring that a sale of such property to satisfy the mortgage thereon shall be under a judicial proceeding, and providing that the mortgagee shall not be entitled to possession of the property, unless, in accordance with the terms of the mortgage, he takes actual possession of the property at the time of the execution of such mortgage, are not unconstitutional, as granting to the owners of household goods special privileges and immunities, pp 219-224.</p> <p>Release. — Chattel Mortgage. — Household Goods. — Receipt for Payments. — Waiver of Statutory Right. — The protection granted toa mortgagor of household goods by §3 of the act of March 8, 1897, (Acts 1897, p. 271) which section makes it the duty of the mortgagee of such property to execute a receipt to the mortgagor for all payments, and invalidates the mortgage for the failure to give such receipts, cannot be waived by the mortgagor; since such waiver would be contrary to public policy pp. 225, 226.</p>

<p>Erom the Jackson Circuit Court.</p>

<p>Palse Pretenses. — Indictment.—Ownership of Property. — Criminal Law. — An indictment for obtaining money by false pretenses which fails to state the ownership of the money thus obtained is fatally defective, pp. 229-231.</p> <p>Same. — Indictment.—Inducing Purchase of Property. — Criminal Law. —An indictment for obtaining money by false pretenses, alleging that the false pretenses were made to induce the purchase of certain property, of which defendant was not the owner, and to obtain money therefor, is insufficient, where it is not charged that a sale was made, as it does not show any connection between the false pretenses and the receipt of the money, pp. 229-231.</p>

<p>Appeal. — Final Judgment. — Criminal Law. — An appeal in a criminal cause which is not taken from a final judgment will be dismissed.</p>

<p>Hiuhways.— Establishment. — Jurisdiction of Board of Commissioners. — Section 6742 et seq Burns 1894 invest the board of county commissioners with plenary jurisdiction over the subject-matter in a proceeding to establish, locate, or change a public highway, and the jurisdiction of the parties is obtained by publication or posting of the notices as therein provided, pp. 238-240.</p> <p>Highways. — Establishment.—Jurisdiction of Board of Commissioners. —Injunction.—Collateral Attach. — Railroads.—Where the board of commissioners in a proceeding to establish a public highway had jurisdiction of the subject-matter of the proceeding, and acquired jurisdiction of the parties, as provided by statute, the same presumption must be indulged as to its proceedings and orders when assailed collaterally as attaches to the proceedings and judgments of a court of general jurisdiction; and before a railroad company can maintain an action to enjoin the establishment of a public highway across its yard and switching tracks, it must show that the order of the board locating the highway was absolutely void. pp. Sift-S4%.</p> <p>Same. — Establishment.—Jurisdiction of Board of Commissioners.— Appropriation of Right of Way of Railroad Company. — The jurisdiction of the board of commissioners over the subject-matter in a proceeding, under the statute, to locate or change a public highway, is not devested by reason of the fact that such proposed location or change will appropriate to the use of such highway any part of the right of way of a railroad company, pp. 242-245-</p> <p>Same. — Establishment.—Appropriation of Right of Way of Railroad Company. — Injunction.—Eminent Domain. — An action can not be maintained by a railroad company to enjoin the establishment of a public highway across its right of way, on the ground that the land had been already devoted to another and different public use, and that the establishment pf the highway would amount to an appropriation of the land to a second public use inconsistent with the former; such question must be raised by remonstrance, and be determined by the board of commissioners, or by the circuit court on appeal, pp. ?Jft-2Ifl.</p>

<p>From the Benton. Circuit Court.</p>

<p>Municipal Corporations. — Bonds for School Buildings Constitute Debt of Civil City. — School bonds issued under the act of 1873, §5975 Burns 1894, for the purpose of obtaining funds for the erection of school buildings constitute an indebtedness against the civil city, and niust be taken into consideration in ascertaining the aggregate indebtedness of such municipality.</p>

<p>From the Grant Circuit Court.</p>

<p>From, the Jay Circuit Court.</p>

<p>From the Howard Superior Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Practice. — Harmless Error. — Special Finding. — "Where the facts in a special finding rest upon a good paragraph, it is harmless error to overrule demurrers to bad paragraphs of the same pleading, p. 327.</p> <p>Sales. — Conditional Sale. — Election of Remedies by Seller. — Where machinery was delivered and constructed into a manufacturing plant upon the purchaser’s premises, under a contract of sale in which it was stipulated that the title to the property should remain in the seller until fully paid for, upon the failure of the buyer to pay the purchase price the seller may retake the property, or treat the sale as absolute and sue for the purchase price, p. 328.</p> <p>Same. — Conditional Sale. — Election of Remedies by Seller. — Where property is sold under a contract of conditional sale, suit by the seller for the purchase price thereof is evidence of the seller’s election to treat the sale as absolute, p. 329.</p> <p>Same. — Conditional Sale. — Delivery.—Waiver of Right to Retake Property. — Where machinery was constructed into a manufacturing plant upon the purchaser’s premises, under a contract of sale conditioned that the title to the property should remain in the seller until fully paid for, it is not necessary for the seller to make a formal act of delivery, or waiver of his right to reclaim the property, before bringing suit for the purchase price, p. 829.</p> <p>Sales. — Conditional Sale. — Election of Remedies. — Delivery.-—Where machinery was constructed into a manufacturing plant under a contract of sale conditioned that the title to the property should remain in the seller until paid for, it was not necessary in order to constitute a delivery that the purchaser accept the property after the seller had signified the waiver of his right to hold the title to the property as security for the purchase price, p. 329.</p> <p>Same.— Conditional Sale. — Testing Machinery. — Waiver.—Where machinery was placed in a manufacturing plant under a contract of sale that the seller was to make a five days’ test of the plant, the obstruction of the performance of the test by the purchaser amounts to a waiver of the test. p. 329.</p> <p>Same. — Conditional Sale. — Election of Remedies by Seller. — Abandonment of Lien. — Where the seller elects to treat a conditional sale as absolute and sues for the purchase price, he thereby renounces his equitable lien. p. 830.</p> <p>Attachment. — Return of Property. — A conclusion of law that defendant was entitled to have the attached property returned to him was proper, where the finding of the court upon the issues joined was that there was nothing due the attaching plaintiffs, p. 331.</p> <p>Practice. — Venire De Novo. — Special Finding. — A motion for a venire de novo will not lie for failure to find upon all the issues, p. 331.</p> <p>Same. — Venire De Novo. — Special Finding. — A motion for a venire de novo will not be granted because mere matters of evidence and conclusions are stated in the special finding, if enough ultimate facts are found to support a judgment, p. 331.</p> <p>Same. — Venire De Novo. — Special Finding.- — A venire de novo will not be granted where the amount of damages is so fully stated that the amount of recovery may be determined by a mathematical calculation. p. 381.</p> <p>Special Finding. — Sufficiency.—Conditional Sale. — A special finding in an action on a written contract of sale, which shows the execution of the written contract, the full performance of all the conditions of the contract by the seller, except where prevented by the purchaser, that the purchaser had possession of the property before suit was brought and refused to pay the purchase price, is sufficient to support a judgment for the amount found to be due the seller. pp. 331, 332.</p> <p>Same. — Practice.—A motion to make a special finding more specific is improper. The motion should be made for a new trial, p. 332.</p> <p>New Trial. — Excessive Damages.— Contracts. — Excessive damages can only arise in actions ex delicto, and a motion for a new trial on account of excessive damages in an action on contract presents no question, p. 332.</p> <p>Evidence. — Antecedent Statements. — Contracts.—Antecedent statements will not be received in evidence to impeach the terms of a written contract, pp. 332, 333.</p> <p>Same . — Principal and Agent. — Statements Made by-Worlcmen.— Statements made by workmen as to the merits of machinery which was being placed by them in a manufacturing plant for the seller are not binding upon the seller, p. 333.</p> <p>Appeal and Error. — Evidence.—Special Finding. — Where the evidence is in conflict upon all material points, the Supreme Court will not weigh it for the purpose of ascertaining the sufficiency thereof to support the special findings, p. 333.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Erom the Porter Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Tenancy in Common. — Adverse Possession. — Limitation of Actions.— A conveyance by a tenant in common, in possession, purporting to convey the entire estate, gives color of title, and if possession is taken thereunder by the grantee, claiming title to the entire estate, and continued during the period of limitation, it will constitute a bar to the recovery of the premises by the other tenants, p. 351.</p> <p>Dower. — When Not Assigned. — Chose in Action. — A widow’s right of dower, without assignment, is a mere chose in action, and does not constitute a life estate in the land. p. 351.</p> <p>Same. — When Not Assigned.— Conveyance. — The right of a widow, under §107 R. S. 1843, to continue with her children in the .enjoyment of the estate, without having dower assigned, was a personal right which she could not convey to others, pp. 351, 352.</p> <p>Tenancy in Common. — Adverse Possession. — Limitation of Actions.— Intestate died in 1849, leaving a widow, two sons and a daughter. The widow, in 1856, without having dower assigned to her, executed a deed to the two sons, purporting to convey to them an undivided one-third interest in the land. The sons took possession of the entire tract of land, under claim of ownership, executed a warranty deed purporting to convey all the estate in the land, and the grantee and his grantees for more than twenty years held the open, exclusive and uninterrupted possession of the lands, paying the taxes and making valuable and lasting improvements. Held, that the right of the daughter to assert her interest in the land was barred, pp. 352, 353.</p> <p>Dower.. — Assignment.—Conveyance.—Limitation of Actions. — A deed executed by a widow, purporting to convey her right of dower, which had not been assigned, gave to grantee only the right to have dower assigned, and where such right was not exercised for twenty years, it was barred, under §112 R. S. 1843. p. 353.</p>

<p>Municipal Coepobations. — Personal Injury of Employe of Contractor. — Plaintiff brought suit against a city and its contractors for damages on account of personal injuries sustained while at work in a sewer. The evidence showed'that in making the excavation for the sewer dynamite was used in blasting the stone, and that plaintiff, in removing the stone and earth loosened by the explosion, struck a piece of dynamite, which exploded and injured him. The city exacted a bond of the contractors, indemnifying it against damagesarising from negligence in the prosecution of the work, but it had no control over the.work further than to see that the improvement conformed to the requirements of the plans and specifications, and had nothing to do with the employment of the servants of the contractors. Held, that the court did not err in directing the jury to return a verdict for the city. pp. 354-363.</p> <p>Mastee and Sebvant.— Injury of Servant. — Knowledge of Danger.— Negligence. — No error was committed in directing the jury to return a verdict for defendants in the trial of an action against a city and its contractors for injuries sustained by plaintiff by reason of an explosion of dynamite in the sewer in which he was at work, where the evidence disclosed that the unsafe condition of the trench was as obvious and well known to plaintiff as to his employers, pp-363-368.</p>

<p>From the Eoone Circuit Court.</p>

<p>Prom the Howard Superior Court.</p>

<p>Erom the Wayne Circuit Court.</p>

<p>Wills.— Probate. — Contest.—A proceeding to contest the probate of a will, under §§2365, 2666, 2765 Burns 1891, cannot be maintained after the will has been admitted to probate by the clerk in vacation, subject to confirmation by the court in term.</p>

<p>Erom the Clinton Circuit Court.</p>

<p>Erom the Clark Circuit Court.</p>

<p>Divoboe. — Interlocutory Orders. — Attorney’s Fees. — Where the wife in a divorce proceeding, brought by the husband", obtained a temporary allowance to enable her to defend, and afterward agreed to withdraw her petition therefor upon her husband’s agreement to pay the same, and not to renew the application before the case was tried, no error was committed by the court in refusing to strike out a motion filed by defendant, at the conclusion of the evidence, for an allowance for the payment of her attorneys, since §1054 Burns 1894 provides for a temporary allowance for the wife, pending the action, to enable her to prepare her defense, and also to an allowance upon a final decree in her favor, to cover her expenses in the prosecution or defense of the action, pp. 4S6-4S9.</p> <p>Same. — Interlocutory Order. — Attorney’s Fees. — It is made the imperative duty of the court, by §1054 Burns 1894, in decreeing a divorce to the wife, or refusing one to the husband, to make an allowance in favor of the wife sufficient to cover all her reasonable expenses in the prosecution or defense of the action, and the amount of the allowance rests in the sound discretion of the court, p. 4-S9.</p> <p>Evidence. — Divorce.—Where a husband in a divorce proceeding testified in support of an averment in the complaint that his wife abandoned him, no error was committed in permitting defendant to ask him on cross-examination if her sister had not requested him, before she filed papers in the case, to take her back, as it tended to characterize the wife’s absence, p. 430.</p> <p>Evidence. — Rebuttal.— Practice.— A party cannot divide his evidence and give part in chief and part in rebuttal, p. 430.</p> <p>Same. — Divorce.—Witnesses—Impeachment.—Where plaintiff in a divorce proceeding alleged as an element of cruel treatment that defendant was guilty of divers grave indiscretions with other men, and introduced evidence tending to prove the averments, no error was committed in permitting defendant to introduce evidence as to her general reputation and character for chastity in the neighborhood in which she resided, pp. 430-432.</p>

<p>From the Delaware Circuit Court.</p>

<p>Practice. — Record.—Correction.—A paper is considered as filed when it i's delivered to the proper officer and by him received for the purpose of filing, and the file mark indorsed thereon is merely evidence of the filing, and may be corrected by the court, pp. 437, 438.</p> <p>Appeal and Error. — Record.—Bill of Exceptions. — Motion to Correct File Mark on Affidavit. — Available error cannot be predicated upon the action of the court in changing the file mark on an affidavit, where the motion to have the correction made, the affidavits in support thereof, the ruling of the court thereon, and the exceptions to the ruling were not made a part of the record by bill of exceptions. p. 438.</p> <p>Criminal Law. — Evidence.—Variance.—Appeal and Error. — To warrant a reversal of a judgment of conviction on account of a variance in the evidence, the variance must be such as might have misled the defense, or exposed defendant to the peril of being placed twice in jeopardy for the same offense, pp. 438, 439.</p>

<p>From the Huntington Circuit Court.</p>

<p>Erom the Jefferson Circuit Court.</p>

<p>.Prom the Pulasld Circuit Court.</p>

<p>Deeds.— Condition Subsequent.— Forfeiture.— Pleading. — A complaint in an action by grantor to recover the title to real estate alleged to have been forfeited by reason of the breach of a condition subsequent contained in the deed is insufficient, where it fails to allege reentry, or that reentry was prevented and that possession was demanded and refused.</p>

<p>Constitutional Law. —Special Legislation. — Corporations. ■ — Insurance Companies. — The act of 1865 (Acts 1865, p. 110, Spec. Ses.), amending the act of 1836 for the incorporation of the Indianapolis Insurance Company by striking out the limitation on corporate duration so that the company should be ‘ ‘A body corporate with perpetual succession,” and the act of 1883 (Acts 1883, p. 135) providing that all existing private corporations organized by special act or charter, passed before the present Constitution took effect, should continue thirty years after the passage Of the act, and where such special act or any amendment or supplement to such act gives the right to exist for a longer period, or perpetually, such corporation should continue for such longer period, or perpetually, as so given, are violative of article 11, section 13, of the Constitution, providing .that “Corporations other than banking shall not be created by special act, but may be formed under general laws,” and of article 1, section 23, which provides that “ The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.”</p>

<p>From the Marion Superior Court.</p>

<p>Appeal and Error. — Evidence.—How Made Part of Record Under Act of 1878. — The act of 1873 (Acts 1873, p. 194) does not create the office of official shorthand reporter whose oath of office covers his reports of all cases in the court of his appointment, and a transcript of evidence certified by one styling himself “official shorthand reporter” is insufficient under the provision of said act, unless the record shows his authority to report the evidence in the particular case. pp. 481, 482.</p> <p>Same. — Evidence.—Record.—Certificate.—A certificate of the judge that the bill of exceptions contains all the evidence given “in said cause ” is insufficient, where it is not shown in what cause, in what court or at what term the evidence was given, pp. 482, 483.</p>

<p>Corporations. — Monopolies.—Restriction of Competition. — Gas Companies. — An agreement entered into by a corporation engaged in furnishing natural gas to the inhabitants of a city, fixing the price of gas to be charged consumers, and stipulating that neither company would furnish gas to persons who were consumers of the other company, is unlawful, and furnishes a basis for a monopoly, pp. 484-491.</p> <p>Quo Warranto. — Corporations—Restriction of Competition. — Monopolies. — Judgment.■—Wherein a quo warranto proceeding against a corporation engaged in furnishing natural gas to the inhabitants of a city it is shown that defendant entered into an agreement with a like corporation fixing the price of gas to be charged consumers, the court may, in the exercise of its discretion, declare a forfeiture of defendant’s corporate franchise, or the judgment may be a forfeiture or ouster only of the right of defendant to carry out or continue the illegal acts established, p. 491:</p>

<p>From the Clinton Circuit Court.</p>

<p>From the Henry Circuit Court.</p>

<p>Pleading. — Complaint.—Immaterial Averment.— Answer. — Breach of Marriage Promise. — An allegation in a complaint in an action for breach of marriage contract that the parties during a previous marriage agreed to obtain a divorce and afterwards remarry, is immaterial, since the agreement was void, and a paragraph of answer traversing such allegation only is properly held insufficient, p. 500.</p> <p>Breach oe Marriage Promise. — Seduction.—Complaint.—Answer.— Where in a suit for the breach of a contract of marriage seduction is alleged by way of aggravation of damages, a plea of previous unchastity must aver that such fact was not known to the defendant when he promised to marry the woman, pp. BOO, 501.</p> <p>Instructions. — Must he Construed Together.— All of the instructions given in a cause are to be considered, not as distinct and independent propositions of law, each complete in itself, but as interdependent, connected, and reciprocal members of the entire charge, p. 502.</p> <p>Instructions. — Breach of Marriage Promise. — Defense.—Where in an action for breach of marriage contract the complaint alleged that defendant promised to marry plaintiff, and the answer attempted to excuse the breach of contract by averring lewd conduct on the part of plaintiff, it was proper to instruct the jury that if defendant, based his right to a discharge from the contract on the immoral conduct of plaintiff, it must appear that he renounced his promise as soon as he reasonably could after such conduct was discovered by him, and that illicit intercourse between the parties after the promise was made constituted no defense to the action. pp. 502-504-</p> <p>Breach op Marriage Promise.— Defense.— Evidence. — Where the defense in a suit for breach of marriage contract is the lewd and immoral conduct of the plaintiff, the rules of evidence require that defendant shall be held to prove under such plea that the contract was broken by him on that account, and not upon some other ground not disclosed by the pleadings, p. 504.</p> <p>Attorney and Client.— Confidential Relations. — Exclusion of Attorney from Assisting in Prosecutions. —Breach of Marriage Promise. — Defendant in a suit for breach of marriage contract by a former wife made a motion supported by affidavit requesting the court to prohibit an attorney engaged in the prosecution from appearing against him for the reason that such attorney had been employed by defendant to conduct a divorce proceeding which resulted in the separation of the parties; that such attorney appeared for plaintiff, but was in fact employed by defendant, and acting as his attorney, and that by reason of such employment he had knowledge of all the facts upon which defendant relied for his defense in the case at bar. The affidavit was uncontradicted by plaintiff. Held, that the court erred in not excluding such attorney from participating in the prosecution, pp. 504-507.</p>

<p>From the "Wayne Circuit Court.</p>

<p>Master and Servant. — Negligence.—Assumption of Risk. — Employers’ Liability Act. — Contributory Negligence. — Statutes.—The repeal! of section two of the employers’ liability act of 1893 (Acts 1893 p... 294), by the General Assembly of 1895 (Acts 1895 p. 148), will not be.accepted as evidence of legislative intent that the remaining section should be construed as overthrowing the common law doctrine-of assumed risks so far as to charge the master with the assumption of all risks from defective machinery and appliances while the servant is engaged in performing acts under the direction of a superior. pp. 515-517.</p> <p>Same. — Employers’ Liability Act. — Contributory Negligence. — The employers’ liability act of 1893, §7083 Burns 1894, making a railroad company liable for damages for personal injuries suffered by an employe in its service while in the exercise of due care and diligence, when such injury is suffered by reason of any defect in the, condition of appliances in nse by the corporation, or by reason of the negligence of any person in the service of such corporation to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform, does not relieve the empldye from that caution and care of himself required by the common law. pp. 517-521e</p>

<p>Prom the Madison Circuit Court.</p>

<p>Mortgages.— Foreclosure.— Redemption. — A purobase-money mortgage in which, the wife did not join was foreclosed, and the wife appealed. Pending the appeal the real estate was purchased by the mortgagee at sheriffs sale under the foreclosure decree. The judgment was reversed as to the wife, and the mortgagee recovered another judgment of foreclosure against the parties, and the real estate was ordered to be sold, from which judgment the wife again appealed, but the judgment was affirmed, and the wife brought suit to redeem her interest in the real estate. Held, that, since the judgment under which the sale was had was reversed, and no sale having been made under the subsequent decree, her equitable right to redeem still existed.</p>

<p>Nuisance. — House Encroaching on Street. — Cities.—A house which encroaches upon the street of a city is per se a public nuisance. p. 538.</p> <p>Same.- — Abatement.—Notice.—Where the lessee of real estate creates a nuisance by erecting a house thereon which encroaches on the street, an action may be maintained against him to abate the nuisance without any notice or request to remove the house, p. 538.</p>

<p>Prom the Monroe Circuit Court.</p>

<p>Prom the Huntington Circuit Court.</p>

<p>From the Lawrence Circuit Court.</p>

<p>Municipal Corporations. — Taxation.—Certification by County Auditor. — Injunction. —An action will not lie to enjoin a town from the collection of taxes against a railroad company because of the failure of the county auditor to apportion to such town its proper share of the taxable valuation of the property, pp. 550-554-</p> <p>Same. — Taxation.—Injunction.—The fact that a railroad company paid taxes to the township upon its property located within the corporate limits of a town will not entitle it to an injunction to prevent the town from collecting the taxes due it. pp. 550-554.</p> <p>Practice. — Harmless Error. — Where a demurrer to a complaint was improperly overruled and judgment was rendered in favor of defendant on demurrer to plaintiffs reply, the judgment will be affirmed, as the correct result was reached, p. 554-</p>

<p>Building and Loan Associations. — Interest.—Usury.—Contracts entered into between building and loan associations and members for interest in excess of the legal contract rate are not in their nature usurious, since the member stands in the dual relation of borrower and lender, and the transactions by reason of the mutuality of relationship and the contingent cost of the use of the money, are not mere loans of money as between strangers, pp. 555, 559.</p> <p>Same. — Usury.—Presumption.—Where defendant in an action against him to foreclose a building and loan association mortgage asserted under the plea of usury that the loan was not offered in open meeting, and that the by-laws were in conflict with the statutes of the State, the burden was on him to prove such claim, since the law presumes that the association exercised its granted powers according to law. p. 55G.</p> <p>Same. — Premiums.—Payment by Rate without Bidding. — Contracts between building and loan associations and members for the payment of premiums by rate, without bidding, instead of in gross, are authorized by the act of 1897 (Acts 1897 p. 287), and said act legalizes all such contracts previously made. pp. 656-559.</p> <p>Same. — Repayment of Loan. — Premiums.—Credits.—Section 4450 Burns 1894 relative to the repayment of loans, entitling the borrower to “so much of the premium or discount paid by him on his loan for the priority thereof as shall bear the same proportion to the whole premium by him paid, which the unexpired time for which the loan was made bears to the whole time for which the loan was made” applies only to instances in which the premium has been determined in gross, and in which at the time of withdrawal the member has paid all or more than a proportional part of the premium. p. 559.</p>

<p>Erom the Marion Criminal Court.</p>

<p>From the Boone Circuit Court.</p>

<p>Erom the Noble Circuit Court.</p>

<p>From the Hamilton Circuit Court.</p>

<p>Appbal and Error. — Harmless Error. — Available error cannot be predicated upon the rulings of the court on the first paragraph of complaint, where the special verdict followed the second paragraph. p. 593.</p> <p>Seduction. — Complaint.—Motion to Make More Specific. — Where a complaint for seduction charged that defendant took advantage of plaintiff’s youth, loneliness, and ignorance of the ways of the world, and by reason of his own maturity, experience, and position, by artifices and persuasions accomplished her ruin, no error was committed in overruling a motion to make the complaint more specific by stating the facts constituting the artifices and persuasion employed by defendant, pp. 598-598.</p> <p>Same. — Complaint.—Joinder of Causes. — A complaint alleging that defendant by his artifices and persuasions seduced plaintiff and induced her to have sexual intercourse with him, from which she became pregnant with child on two occasions, and that on each occasion he and his codefendant conspired together and induced her to submit to an abortion in order to prevent childbirth, and the consequent exposure of defendant, states a single cause of action against defendants jointly, and no error was committed in denying a motion to separate the complaint into paragraphs- and overruling a demurrer for misjoinder of causes of action, pp. 598-602,</p> <p>Same. — Special Verdict. — A finding by the jury in an action for seduction that plaintiff was chaste prior to the time of her intercourse with defendant, and that she yielded her person to him because of her confidence in him, her belief in his flattery, persuasions and protestations of affection practiced upon her for a long time prior thereto, and her reliance upon his continued promises of friendship, protection, and assistance in getting whatever she might ask for or need, constituted a sufficient finding of the ultimate facts to show the means employed by defendant in seducing plaintiff, p. 608.</p> <p>Same. — limitation of Actions. — Successive acts of sexual intercourse constitute a continuous wrong, consummated in the last act, and an action for seduction brought within two years of the final act of sexual intercourse is not barred by the two years’ statute of limitation, although the first act of intercourse occurred more than four years before the action was brought, pp. 603-605.</p> <p>Same. — Abortion.—liability of Physician. — A physician who performed an operation on a woman for the purpose of producing an abortion in order to conceal knowledge of the seducer’s illicit intercourse with her is liable in an action for seduction, although he did not know that his codefendant seduced plaintiff, pp. 60S, 606.</p> <p>Continuance. — Absence of Witness. — The failure to grant a continuance on account of the absence of a witness will not be reviewed on appeal, where it is shown that the witness was old and infirm, and the fact sought to be proved by the absent witness was testified to by fourteen other witnesses, pp. 606, 607.</p> <p>Instructions. — Seduction.—Chastity of Plaintiff. — General Reputation. — Evidence.—Burden of Proof — An instruction 'in the trial of an action for seduction, that the law presumes, in (the absence of evidence, that plaintiff was virtuous before her alleged seduction, and that in weighing the evidence as to her general reputation for chastity the jury were not bound by that evidence to find that she was not virtuous, but must consider all the evidence in the case in determining whether or not she was virtuous, was correct, where a proper instruction was given as to burden of proof, p. 607.</p> <p>Evidence. — Exceptions.-—Offer to Prove. — An exception is not properly saved to the action of the court in sustaining an objection to a question propounded to a witness by defendant, where defendant excepted to the ruling and afterward made the offer to prove. pp. 607, 60S.</p> <p>Damages. — Seduction.—Judgment.—A verdict in an action for seduction assessing" plaintiff’s damages at $5,000 will not be set aside as excessive, where the judge who heard the case approved the assessment, and thereMs nothing in the record to show that the verdict was the offspring of prejudice or passion, pp. 608, 609.</p>

<p>From the Huntington Circuit Court.</p>

<p>Erom tbe White Circuit Court.</p>

<p>Negligence. — Master and Servant. — Railroads.—Where a railroad company permitted a portion of its road-bed underneath the cross-ties to become soft by reason of the flow of water from a hydrant of the company, so that the rails and cross-ties would sink down when the weight of a car was placed upon them, such condition not being obvious or apparent, but being known to the master, or by the exercise of ordinary care discoverable by him, such neglect constituted a breach of the duty of the company to keep and maintain the roadway in a sound and safe condition for the protection and security of its employes, pp. 620-625.</p> <p>Same. — Complaint.—Master and Servant. — Railroads. — A complaint in an action for personal injuries by an employe of a railroad company, alleging that defendant had allowed that portion of its tracks in front of the freight depot to become in a dangerous condition by permitting a large volume of water from a hydrant to flow over and under the tracks, causing the earth under the tracks to become soft and yielding, and that' while plaintiff was placing a car in position, preparatory to coupling same, the car in the rear came over the defective track, making a depression in the track, by reason of the defective condition thereof, which caused plaintiff’s foot resting thereon to slip, and before he could remove his foot, without any neglect on his part, ran over same, cutting and mangling it, is sufficient against demurrer, pp. 620-625.</p> <p>Practice. — Interrogatories to Jury. — Signature of Foreman. — The statute does not require that the foreman shall sign his name to each answer to the interrogatories propounded to the jury, although this is the better practice, p. 625.</p> <p>Same. — Interrogatories to Jury. — Failure to Sign. — Where no objection is made to the failure of the foreman to sign each separate answer to interrogatories propounded to the jury before their discharge, it is too late to urge the objection for the first time on appeal, pp. 625, 626.</p> <p>Verdict. — Interrogatories to Jury. — Answers to interrogatories cannot be aided by intendment, as the intendments will be made in favor of the general verdict, p. 627.</p> <p>Appeal and Error. — Evidence.—The Supreme Court will not disturb the verdict on the evidence, where there is evidence strongly tending to sustain it. p. 629.</p> <p>Instructions. — Invasion of Province of Jury. — An instruction in the trial of an action for personal injuries caused by the alleged defective condition of defendant’s railroad tracks, that the presence of cinders upon the surface of the ground alongside the track would not indicate to a person of ordinary intelligence that the track had been made solid so that it would not sink, was properly refused, as it was for the jury to say what inferences of fact should be made from the evidence on such point, pp. 629-630.</p> <p>Evidence. — Negligence.—Personal Injuries. — In an action against a railroad company by an employe for personal injuries caused by the defective condition of defendant’s railroad tracks, proof that no other person had ever been injured by reason of such defect at the place mentioned was properly excluded, p. 630.</p> <p>Judgments. — Excessive Damages. — Personal Injuries. — A judgment in an action for personal injuries will not be reversed on the ground that excessive damages were awarded, unless it appears that the jury must have acted from prejudice, partiality, or corruption. p. 630.</p>

<p>From the Whitley Circuit Court.</p>

<p>Appeal and Error. — Dismissal.—Where the sole object of a proceeding was to remove defendants from office as county commissioners, and pending an appeal from a judgment for defendants their terms of office expired, the appeal will be dismissed, pp. 633-636.</p> <p>Costs. — Impeachment Proceedings. — Act of 1897. — Action Instituted in Names of Grand Jurors Instead of State. — Where an impeachment proceeding was instituted under the impeachment act of 1897 ' (Acts 1897, p. 278) in the names of the individual members of the grand jury, the prosecuting attorney and his deputy, instead of in the name of the State, and the prosecution resulted in favor of the accused, the plaintiffs should not be held liable for costs. pp. 636-641.</p>

<p>Erran the "Washington Circuit Court.</p>

<p>Prom the Montgomery Circuit Court.</p>

<p>Erom the Delaware Circuit Court.</p>

<p>County Commissioners. — Contracts.—Injunction.—An action by a taxpayer to annul a contract entered into by the board of commissioners employing a person on a commission or percentage to discover and report property omitted from taxation, and to enjoin payment thereunder, cannot be maintained, since §7853 Burns 1894 provides an adequate legal remedy by requiring such claimant to file his account in the commissioners’ court ten days before the beginning of the term, and gives any taxpayer the right to appear and contest the claim.</p>

<p>Appeal and Error. — Bill of Exceptions. — Evidence.—How Made Part of Record. — Act of 1897. — The evidence is properly in the record, under the provisions of the act of 1897 (Acts 1897, p. 244) where the bill of exceptions containing the evidence was properly certified by the judge as a true bill of all the evidence, and «filed with the clerk within the time allowed by the court, although the record does not show that the longhand jnanuseript was filed in the clerk’s office before being incorporated in the bill of exceptions. p. 690.</p> <p>Instructions. — Evidence. — Weight. — Criminal Law. — Words and Phrases. — A statement in an instruction that “there is some evidence tending to show” a particular fact, is equivalent to a statement that evidence had been given relating to su'ch fact, and no error was committed in using such statement in an instruction in the trial of a criminal cause, where evidence relative to such fact had been given, and its weight was left to the jury. pp. 690-693.</p> <p>Same. — Words and Phrases. — Presumption.—Criminal Law. — It will be presumed in the absence of any showing to the contrary that words used in qn instruction in the trial of a criminal cause were-used and understood by the jury in their ordinary and usual sense. pp. 691, 692.</p> <p>Same. — Evidence.—Criminal Law. — In the trial of a murder case eu police officer testified that he was present at a conversation between the accused and his son a few days after the homicide, and after the arrest, in which the son said that a handkerchief found near the place where the murder was .committed belonged to his father, and the officer did not remember an-y reply made by the accused. Held, that the evidence warranted the giving of an instruction that there was some evidence tending to show that accused made no. reply to the statement made by the son. pp. 693, 694.</p>

<p>From the Madison Circuit Court.</p>

<p>From the Delaware Circuit Court.</p>

<p>From the DeKalb Circuit Court.</p>

<p>From the Sullivan Circuit Court.</p>

<p>From the Huntington Circuit Court.</p>

<p>From the Madison Circuit Court.</p>

<p>From the Jefferson Circuit Court.</p>

<p>From the Grant Superior Court.</p>